67 P. 866 | Kan. | 1902
The opinion of the court was delivered by
This case relates to the assignability of a contract to do county printing. The board of county commissioners of Sumner county made a contract with Mrs. Carrie Herring to do the printing for that county for one year. She performed the work for a portion of the time, but finally assigned the contract to one Thomas George, who, in turn, assigned it to John G. Campbell and Charles Hood, as partners. The board of commissioners refused to recognize the assignment, and refused to furnish any printing work to the assignees, but, instead, made a new contract with another person, and thereafter furnished the work to him. Campbell and Hood sued, principally for damages for violation of the assigned contract. The relief in damages was denied, but a judgment in debt for an amount earned on the contract before its assignment and remaining unpaid was awarded. The plaintiffs have prosecuted error.
“At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable.
“But every one has a right to select and determine with whom he will contract, and cannot have another*378 person thrust upon him without his consent. In the familiar phrase of Lord Denman, ‘You have a right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.’ Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305, 93 Am. Dec. 93; Boston Ice Co. v. Potter, 123 id. 28, 25 Am. Rep. 9 ; King v. Batterson, 13 R. I. 117, 120, 43 Am. Rep. 13; Lansden v. McCarthy, 45 Mo. 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise : ‘ Rights arising out of contracts cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.’ Pollock on Contracts (4th ed.) 425.”
The rule has been illustrated and applied in many cases besides those cited in the quotation made.
Now, the case in hand is not of the particular class of the one above noted, where commercial credit was extended and a special confidence in honesty and fair dealing was reposed, but it rather belongs to another class, in which the determining'consideration in the mind of one party is a belief in the capabilities and artistic skill of the other — that, in part, at least. However, the rule is the same in both classes of cases.
Printing is an art — it is more than a mere mechanical pursuit.' Given the requisite type, and other appliances, some who practice it can make a printed page as pleasing to the artistic sense as a picture, while others with the same advantages can produce nothing that is not grievous to the judgment, eye, and taste. We must presume that when the board of commissioners contracted with Mrs. Herring to do the county printing they did it with a view to her superior qualifications as a printer, and the superior
There is a decision apparently opposed to the application of the rule in question to a public-printing contract. It is Carter v. State, 8 S. Dak. 153, 65 N. W. 422. In that case it was held that a contract with the state to do certain kinds of printing, which did not contain a contrary stipulation, might be assigned. The principal ground of the holding seems to have been that the state retained the obligation of the original contractor, secured by bond with sureties, for the due performance of the work. Such reasoning overlooks the fact that a suit on the contractor’s bond after the mischief had occurred is no fair substitute for the non-occurrence of the mischief. The decision does not commend itself to us.
The judgment of the court below is affirmed.